The story isn’t all that complicated. Beverly Ballard was a swimming instructor. She also had a mother who was diagnosed with end-stage congestive heart failure and was not expected to live. Beverly was the primary care giver for her mom: she was responsible for preparing her meals; administering her mom’s insulin shots and medicine; operating a pump to remove fluids from her mom’s heart; bathing her mom; providing her transportation and ensuring she made it back and forth to and from her bed.

Beverly later learned that a local charitable organization had granted her mother a “make a wish” trip to Las Vegas because she was terminally ill. According to Beverly, the six-day trip would require her own absence from work because she would need to care for her mom during the trip. Beverly’s employer denied her request for leave, but Beverly went anyway. In addition to administering her mom’s medicine and generally looking after her while in Vegas, Beverly also “spent time with her mother playing slots, shopping on the strip, people-watching, and dining at restaurants.” Beverly fully acknowledged that her mom was not heading to Vegas for medical care, therapy or any kind of treatment. Put simply, it was a vacation exclusively for her mom.

Beverly’s employment was terminated for unauthorized absences. She later filed suit, alleging that her employer interfered with her ability to take FMLA leave.

An FMLA Conundrum

We’ve grown used to courts dismissing these kinds of cases. Recall the Tayag case, where the court dismissed an FMLA lawsuit because the employee’s trip with her seriously ill husband to meet with a “faith healer” in the Philippines also was spent visiting socially with family. By and large, courts tend to dismiss FMLA lawsuits where the family member for whom the employee is caring is not seeking treatment at the remote destination.

That said, I have been worried about a case like Beverly’s. Not necessarily the Vegas part (but these facts don’t help). I’ve been worried that a court actually would allow an employee to travel on a recreational trip to care for a family member. The cynical side of me frets over the proverbial flood gates opening to allow any FMLA abuser to scam FMLA leave simply by taking mom on their next trip to Disney World or to climb Mt. Kilimanjaro.

But the court reviewing Beverly’s situation bucked the authority preceding it, finding that it didn’t matter where Beverly was providing the care — so long as she was providing it. (Read the court’s decision here.)

Do you know what bothers me the most about this decision? That I can’t necessarily disagree with it. Many courts before this one have read into the FMLA an obligation that treatment be part of any trip that requires travel away from home. Yet, as this court pointed out, the FMLA only requires that Beverly seek leave to “care for” her mom, who had a “serious health condition.” Here’s the imporant part of the court’s written opinion:

There is no question that [Beverly’s mom] suffered from a covered “serious health condition,” and was unable to care for her own basic medical, hygienic, or nutritional needs or safety. There is also no question that the services [Beverly] provided her mother at home [long list of services] constituted, at the very least, physical care within the meaning of the FMLA. It follows, then, that Ballard also “cared for” her mother during their trip to Las Vegas because her mother’s basic medical, hygienic, and nutritional needs did not change while she was there . . .

So long as the employee provides “care” to the family member, where the care takes place has no bearing on whether the employee receives FMLA protections. Accordingly, . . . a reasonable jury could find that [Beverly] “cared for” her mother within the meaning of the FMLA during the time she spent traveling to Las Vegas.

Insights for Employers

Wow. A case like this one screams out for some DOL guidance on the issue, as employers rightly fear that a decision like this one — as reasoned as it is in this instance — is a “get out of jail free” card for those who abuse FMLA leave. Until then, employers should keep the following in mind:

In light of the Ballard case, treatment is not required where an employee is obligated to care for a family member with a serious health condition. So, employers clearly take a risk when they allow FMLA leave only when the trip includes some form of medical care, treatment or therapy.

As a result of this reality, employers must ensure that certification clearly indicates that care by the employee is medically necessary. If the certification is incomplete or inadequate, use the tools available to you to authenticate and clarify the certification. Where certification is insufficient, tell your employee precisely what information is missing/insufficient and give them time to cure (at least seven days). Where they fail to cure the deficiency, consider obtaining their permission to talk directly with their family member’s health care provider to obtain the information. In this situation, the employee has two choices: either cure the certification or grant permission for the employer to contact the health care provider. Having the appropriate certification on file will deter would-be FMLA abusers from seeking a quick FMLA fix.

Let the obvious situations go. Call me squishy here, but when an employee’s mom is terminally ill and she’s seeking leave to care for her while she goes on a “make a wish” trip, let her go and use your time and effort to fight a different battle.

In the meantime, feel free to mutter under your breath, “Serenity now“!

About Jeff Nowak

Jeff Nowak is co-chair of the labor and employment practice at Franczek Radelet, where he represents employers in all aspects of employment law. His clients praise him as a trusted business partner who is acutely aware of their business goals and the impact employment decisions have on their operations. A staunch advocate and effective litigator for his clients, Jeff also isn’t afraid to be candid with clients where compliance issues or litigation must be resolved to meet business objectives. He is a nationally-recognized leader in the FMLA and ADA, and his passion for the FMLA shows through on this blog.